The Catch-22 of forced marriage and migration

Women trafficked into marriage remain hidden in Australia and afraid to speak up, for known reasons, Marianne Dickie writes.

On 15 February 2018, the Australian Government announced it would introduce a 12-month trial to “enable victims of forced marriages to access up to 200 days of support through the Support for Trafficked People Program without being required to contribute to a criminal investigation or prosecution”.

The scheme provides victims of trafficking and their immediate family members access to case management, suitable accommodation that meets Australian Federal Police (AFP) security needs, medical treatment, counselling services, and referral to legal and migration advice.

The announcement comes after the handing down of a report in December 2017 titled ‘Hidden in Plain Sight: An inquiry into establishing a Modern Slavery Act in Australia’ by the Joint Standing Committee on Foreign Affairs, Defence and Trade.

This recognition of victims/survivors of forced marriage reflects the continuing concern amongst government and non-government agencies about the increasing number of human trafficking cases that involve forced marriages.

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Evidence provided to the inquiry included an increase in forced marriages, as well as the use of marriage visas as a method of human trafficking, to the extent that a third of human trafficking cases referred to the AFP involved forced marriage offences.

Yet the approach we have to take to assist these women is hampered by the very legislation which should protect them.

The current visa regime in place to protect victims of human trafficking relies upon the victim notifying or coming to the attention of the Department of Home Affairs or the AFP.

If the victim is already on a valid visa they will usually be allowed to remain on that visa until the investigation is completed. Otherwise, they can access a temporary bridging visa.

However, there is a real danger for temporary migrants in revealing they are a victim of a forced marriage. Under the Criminal Code Act 1995, one party to the marriage must have entered the marriage without “freely and fully consenting”: because there was use of “coercion, threat or deception”; or because “the party was incapable of understanding the nature and the effect of the marriage ceremony”.

The definition of De facto partner and Spouse are in the Migration Act. These include the criteria that the relationship is “a mutual commitment to a shared life to the exclusion of all others” and that the “relationship is genuine and continuing”. The legislative definitions make it clear that the commitment to the relationship must come from both parties before they applied for the original provisional visa, and during the two years following the grant of the visa.

If a person was forced into marriage, they cannot legally meet these parameters. If the relationship was not valid, the visa should not have been granted in the first place and will be cancelled.

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The spectre of women facing a ‘Catch-22’ situation, where their permanent visa is not approved or their current visa cancelled, has been raised repeatedly before various committees and inquiries into slavery and slavery-like practices.

Due to the very real prospect of a visa cancellation or refusal, most women in this situation would be advised to access the family violence option when seeking a permanent visa. However, this is itself not a safe option and relies on the unofficial ‘discretion’ of departmental staff.

Under the Migration Regulations 1994, a permanent partner visa can only be granted if the person has lived in a genuine and continuing relationship with their sponsor for two years after the grant of their original provisional visa. In specific circumstances, such as family violence, the legislation allows for applicants to be granted a visa before this two-year period is over.

However, if the victim tries to access the family violence provisions, they will face the same ‘Catch-22’ hurdle. The marriage must have been valid at the time of application or at some point in the two-year period following. Decision-makers are advised under departmental policy that if they conclude the relationship was not genuine, they are to refuse a permanent visa and make no finding under the family violence provisions.

Migration legislation now includes a Human Trafficking Visa Framework that provides a range of penalties for visa fraud in sponsorship, and limited visas to protect witnesses to crime. These changes were unusual in migration law and policy, particularly in an area so closely linked to compliance, in that they followed an evidence-based approach, responding to a range of inquiries and recommendations.

During the past 15 years, at least seven parliamentary or government inquiries have looked into the issue of human trafficking, but only one has focused specifically on partner migration.

The Australian Institute of Criminology report on human trafficking and partner migration acknowledged the visa system requirement that a marriage be ‘genuine and continuous’ for two years. However, the discussion of these provisions revealed the lack of awareness of the impact that reporting a forced marriage (or non-genuine marriage) would have on the visa holder. Consequently, the recommendations of the report fell short of amending the family violence provisions within the regulations to include forced marriage.

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Three years later, the 2017 Parliamentary Joint Committee on Law Enforcement inquiry into human trafficking heard evidence that the regulations must be changed to include forced marriage. The family violence provisions must allow for circumstances where a marriage was forced and there was no ‘genuine relationship’.

Yet, perversely, the committee did not recommend a change to the legislation.

Also last year, the Parliamentary inquiry that produced the ‘Hidden in Plain Sight’ Report was asked to investigate the implications for Australia’s visa regime. The Committee heard evidence that the current regulations do not adequately address the issue of forced marriage. Once again the final report made no recommendations that would amend this lack of legal protection for victims.

So, the question remains: why have we not addressed this obvious gap in migration law for victims of forced marriage?

A revealing factor during the latest inquiry may be that, despite more than 200 submissions, there were none from professional bodies representing migration agents and lawyers – nor any easily identifiable migration agent or academic focusing on migration practice (other than human trafficking experts).

Data on the number of forced marriage cases for migrants is desperately needed. Research should look to those who practice in this area of migration law, to domestic violence shelters and non-government agencies assisting migrant women fleeing or attempting to flee the shackles of a forced marriage.

Failure to do so leaves Australia at risk of “routinely deporting potential witnesses and victims … while allowing traffickers to act with impunity in Australia and abroad” – a fact identified by Parliament 15 years ago.